2. Power to make general orders for remuneration in convey- On the first of January, 1882, there came into operation a statute, which is, perhaps, the most important piece of property legislation since the passing of the act for the abolition of fines and recoveries. It is an act containing seventy-three sections, and many of these are subdivided into numerous sub-sections. It is, therefore, somewhat bulky in size, and, in addition to this, its language being based on the supposition that the reader is more or less familiar with the theory and practice of property law, it is not easily intelligible to a student. I venture, therefore, to think that a concise outline of its provisions in plain English, together with a few hints as to how far it may be relied on with advantage, and how to avoid some serious but not unnatural errors in the user of it, may be instructive, even though it be a hopeless task to render the subject interesting. The statute is intituled "An Act for simplifying and improving the practice of Conveyancing, and for vesting in Trustees, Mortgagees and others, various powers commonly conferred by provisions inserted in Settlements, Mortgages, Wills and other Instruments, and for amending in various particulars the Law of Property; and for other purposes. It is obvious, however, that in reality the simplification of conveyancing and the vesting of powers B in trustees and mortgagees, is in itself an amendment of the law of property, and therefore it seems to be a more logical division (at all events, for my present purpose) to consider the act under three heads; the first, treating of new obligations, rights or powers of a prima facie nature, which will henceforth be taken to form part and parcel of certain documents, unless expressly controlled or excluded; the second, treating of new rights, duties and obligations which will not be taken to form part of documents, unless imported into them by the use of apt words; and the third, treating of certain alterations in the rules of law applicable to property, and to the rights therein of persons with limited interests, or whose powers of dealing with it are restricted by reason of some disability. I. NEW OBLIGATIONS, RIGHTS OR POWERS TO BE PRIMA FACIE IMPLIED IN DOCUMENTS. Implied Conditions of Sale. First, then, certain primá facie rights are given to a vendor, which seem to reverse the old policy of the law; for, whereas the burden formerly lay on a vendor to prove that he was in a position to vest the property in the purchaser effectually, it will now lie, in great measure, on the purchaser to show that the vendor cannot do so. Indeed, it will in future be the safest course for a vendor to sell under an open contract, and a most dangerous thing for a purchaser to purchase under one, instead of being as now vice versa. A purchaser can no longer say with Timon of Athens, "I'll trust to your conditions," for in addition to those expressly agreed to, he will have to face the stringent statutory conditions of which he probably never before heard. That these remarks are just, will, I think, be seen from the following digest of the rights conferred on vendors by the new act; to which for the sake of convenience I have joined those conferred by the Vendor and Purchaser Act, 1874. These rights, then, are shortly as follows: 1. A vendor need only deduce a forty years' title (V. & P. Act, sect. 1), except on the sale of an advowson, where 100 years is still required, and on the sale of a long lease, or of tithes, or property granted by the crown, or of a reversion, in which cases the creation of the lease, tithe, property, or reversion will still have to be deduced. In such cases, however, the title subsequent to the creation of such lease, &c. need not be carried back more than forty years. (Frend v. Buckley, L. R., 5 Q. B. 213.) 2. On the sale of any property, the purchaser cannot demand the production or an abstract of any document dated prior to the statutory or the agreed root of title, even where such document creates a power exercised by the instrument which is the root of title or by any subsequent instrument; and any recital of any document dated prior to the root of title, must be taken to be an accurate and complete account of such document so far as is material, which must also be assumed to have been duly executed and perfected in every particular. This condition will not, however, prevent a purchaser from showing aliunde that the title is defective (sect. 3, sub-s. 3). And it has been held, that where a vendor himself accidentally disclosed a prior deed which showed a flaw in his title, the purchaser could take the objection. (Smith v. Robinson, 13 Ch. Div. 148.) 3. Statements in instruments, statutes or declarations twenty years old at the date of the contract, are to be accepted as prima facie evidence of their own truth. (V. & P. Act, sect. 2.) Indeed this rule may operate so as to exclude the right to even a forty years' title. Thus, a statement in a deed twenty years old, that A. was then seised in fee, has been held to be prima facie evidence of that fact, and therefore sufficient (in the absence of evidence to the contrary) to excuse any earlier title being shown. (Bolton v. Lond. Sch. Bd., L. R., 7 Ch. Div. 766.) This being so, it is desirable, in drafting conveyances, to start with a recital that A. was seised in fee, because in twenty years such a deed will be a good root of title. But do not add the usual words "or otherwise well entitled," as that at once qualifies the statement of the seisin in law, and prevents the operation of the statutory condition. It would, however, perhaps be unwise to trust too implicitly to the above cited decision, because, though unappealed, it has been the subject of much criticism. 4. On the sale of enfranchised copyholds, the vendor need not deduce the title of the lord of the manor (sect. 3, sub-s. 2). 5. On the sale of leaseholds the vendor need only show the commencement of dealings with the lease or sub-lease which he has contracted to sell, and not the title either of his landlord, or of his landlord's landlord. (V. & P. Act, sect. 2, and Conv. Act, sect. 3, sub-s. 1.) It should be remembered, for the protection of unwary purchasers, that an assignee or lessee is still held to be affected with constructive notice of his assignor's or lessor's title, and that he will be bound by any restrictions imposed on his assignor or lessor, although they do not appear on any document abstracted. (See Patman v. Harland, 17 Ch. Div. 353, 359.) 6. On the sale of leaseholds, the purchaser must assume, unless the contrary appears, that the actual lease, and also any superior lease were duly granted, and the last receipt for rent is made prima facie evidence, that the covenants and conditions of the actual lease, and also of any superior lease, have been duly observed and performed up to the date of the completion of the purchase (sect. 3, sub-ss. 4 and 5). But if there have been continuing breaches for which a purchaser would be liable to be evicted immediately after his purchase, it is doubtful whether the Court would enforce specific performance of the contract. (Lawrie v. Lees, 14 Ch. Div. 149.) 7. On the sale of any property, the purchaser will have to bear the expenses of the production and furnishing of copies of all documents and certificates, whether the same are required for verification of the abstract, or for any other purpose, and of procuring information not in the vendor's possession. He will also have to bear the expense of attested copies of documents retained by the vendor (sect. 3, sub-s. 6). In case of a sale in lots, where the deeds are to be handed over to the largest purchaser, a case which the act does not appear to provide for, a condition should be inserted throwing these expenses on a purchaser. 8. On the sale of land (which would seem not to include incorporeal hereditaments), where the vendor retains any part of the estate to which the muniments relate, he is entitled to retain them. (V. & P. Act, sect. 2, sub-s. 5.) |